General Terms and Conditions


of Torgauer Maschinenbau GmbH for delivery, assembly and repair of machines and plants in domestic business

§ 1 General Terms

  1. These General Terms and Conditions apply to all our offers and contracts of deliveries and services, even if in continuing business relations repeated express reference is not made. Accepting our offer or our order confirmation, the purchaser accepts them as legally binding, even if its own Terms and Conditions are different, even if we do not expressly contradict them. Deviations from our terms are to be agreed in writing and they are only valid if they are confirmed by the signature of our management.
  2. Our prospects and general documents are subject to change with respect to prices and delivery options. Any orders placed by the purchaser shall only be binding for us after they have bee confirmed to us in writing. The content of our confirmation shall be definitive for the transaction.
  3. Plans, sketches and other technical documents, as well as samples, catalogues, brochures, pictures and the like, shall always remain the intellectual property of tmb, under the protection of the corresponding legal provisions regarding reproduction, imitation, competition and know-how.
  4. So If any software is included in the scope of supply, the customer will be granted a non-exclusive right to use the software, including its documentation. It is provided for use on its intended delivery item only. The software may not be used on more than one system. The purchaser may only copy, rework or translate the software or translate its object code into source code within the legally permissible scope (Articles 69 a ff. of the German Copyright Law (Urheberrechtsgesetz, UrhG)). The purchaser undertakes not to remove producer information - particularly copyright marks - or to change them without the previous express consent of tmb. All other rights in the software and documentation, including copies, shall remain with tmb and/or the software supplier. Sub-licences may not be granted.

§ 2 Prices and Payment Terms

  1. With his purchase confirmation the purchaser guarantees his solvency and willingness to pay, as well as his creditworthiness.
  2. The prices are, unless otherwise specified, ex works, exclusive of packing, carriage, value insurance as well as other expenses and plus the applicable value-added tax.
  3. At our price calculation we assume that the items, which were used as a basis of the offer, remain unchanged, that possibly necessary preliminary works or performances of the purchaser have been fully completed and that we can perform our services without obstructions and interruptions. Our offers are always based on the performance description of the purchaser and without knowing the local conditions. Unless otherwise specifically agreed, payment shall be made on account without any deduction to tmb, namely:
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  5. In case of a contract of work and materials we may demand, according to assembly progress, appropriate instalment payments for the services already provided by us.
  6. In case of a purchase contract the payments fall due at the latest after handover of delivery or service. A target sale requires an agreement, whereby invoices are payable without deduction in principle within 30 days from the invoice date.
  7. In case of arranging a discount, the punctuality of the payment can only be granted, if the payment is credited within the discount period to the account stated on the invoice.
  8. The purchaser’s non-compliance with the agreed Payment Terms for reasons, for which he is responsible or for reasons becoming known after the respective conclusion and which could reduce the reditworthiness of the purchaser, shall result in the immediate payment of all our accounts receivable, irrespective of the maturity of possibly accepted bills of exchange, with the exception of the claims for which the purchaser has, according to clause 8, a right of retention. This applies in particular, if the customer is with other orders in arrears of payment. Furthermore, the non-compliance with the Conditions of Payment entitles us to refuse the performance till a pre-payment or sufficient security is effected or, after setting an extension period, to withdraw from the contract or to demand compensation because of default, without prejudice to the right to withdraw the goods delivered under reservation of ownership.
  9. If there is a longer period than four month between the order confirmation and the delivery date, we can charge the purchaser for the costs of unanticipated changes in price for raw materials and operating supplies to be purchased by us.
    We are entitled at any time to a price increase resulting from the increase of the sales tax or value added tax.
     

§ 3 Delivery, Assembly and Repairs

  1. The delivery, assembly and repair period shall begin after receiving all necessary documents and performances to be delivered by the purchaser and the possibly agreed advance payment; at the earliest however, with the confirmation of order of tmb.
  2. tmb reserves the right to change the design and form during the delivery time, insofar as the delivery item will not be essentially modified by it.
  3. The stipulated delivery periods will be met as far as possible. In the event of an agreed modification of the order we are entitled to recalculate the delivery date. Minor delays shall be permissible. Upon expiry of the delivery period the purchaser shall be entitled to set a reasonable extension of time, whereby the interests of the purchaser and the supplier shall be taken into account.
  4. The time of delivery is met when the item to be delivered has left tmb‘s premises by the end of the stipulated time or when it is notified as ready for dispatch. If acceptance is required, the acceptance date shall apply - except in the event that acceptance is justifiably refused - and in the alternative the notification of acceptance readiness.
  5. Deliveries that remain unperformed or are delayed due to circumstances for which we are not responsible, shall entitle us to the corresponding delivery or to withdraw partially or fully from the contract, without the customer having the right to make a claim for compensation or to demand the cancellation of the contract.
    Circumstances for which we are not responsible are in particular:
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  7. Our deliveries are ex works. When the delivery item is handed over to the carrier or leaving the work - regardless of whether the carrier is instructed by the purchaser, by the manufacturer or by tmb - the risk of accidental loss or accidental depreciation of the delivery item shall pass to the purchaser, irrespective of the place of delivery and of who bears the freight costs. This shall also apply to partial deliveries and if tmb has been commissioned to provide further services, for example, dispatch or delivery and installation, also in case of the transport by vehicles of tmb.
  8. In the event that transport or the acceptance is delayed or becomes impossible due to circumstances that are not attributable to tmb, the risk shall pass to the purchaser upon the day on which it has been notified that the goods are ready for dispatch or acceptance.
    tmb shall conclude the insurances for the delivery item at the customer's cost only if it has been required in writing. Claims against the forwarder or its liability insurance may be transferred in a separate agreement.
  9. If the goods are transported by an own vehicle or a truck trailer of the manufacturer, the goods will be handed over, at the latest, as soon as they are available to the consignee on the vehicle at the delivery station, provided that free access is possible. If the supplier is of the opinion that the access is impossible, delivery shall take place where unhindered delivery is possible.
  10. In case of export business we deliver basically duty unpaid and untaxed free frontier station or frontier forwarding.

§ 4 Reservation of title

  1. We reserve title to the delivered or manufactured good until complete payment of the purchase price. The reservation of title remains in force until all claims, including subsidiary claims and also future claims arising from the business relationship, have been paid. (Reservation of current account)
    This also applies if the purchaser effects a payment for determined deliveries designated by him.
    In the case of an excess of security of our demand we are committed to release a corresponding part of the security at the request of the purchaser. The purchaser shall be obligated to insure the delivery item adequately against fire, water and other damages, as long as the reservation of title exists and to prove them on demand of tmb. Insurance claims in the value of the goods are hereby assigned to us.
  2. In the event of any breach of contract by the customer, in particular any delay in payment, in case of stopped payment, a request for insolvency proceedings, etc. we shall have the right to withdraw the item of sale. The purchaser allows us to this end, to access his rooms, premises and sites and to do everything necessary for the removal. Withdrawal or attachment of the goods by us shall only be deemed as a withdrawal from the contract if this has been expressly declared by us in writing. § 449 clause 2 of the German Civil Code is hereby excluded.
  3. The purchaser has the right to resell the goods subject to reservation of title within the scope of proper and orderly course of business. Other dispositions, in particular a pledge or transfer by way of security, are not permissible.
    Furthermore it is forbidden for the purchaser to enter into any agreement with his own customers that might exclude or impair the rights of tmb in any way. In particular, the purchaser may not enter into agreements which annul or impair the prior assignment of the claims to tmb.
    A resale shall take place only under reservation of title. The right of resale also becomes void for the same reasons, which entitle us to reclaim the goods according to clause 2.
  4. The customer hereby agrees to assign to us any claims and security rights resulting against the buyers or third parties from reselling the goods, regardless of whether the goods subject to reservation of title are resold without or subsequent to processing. We hereby accept the assignment. If the goods subject to reservation of title are resold together with other goods, which are not our property, the prior assignment will only apply in respect of the amount of our value of goods.
  5. Also after the assignment, the purchaser retains authorisation to collect claims assigned to us. Our right to collect the claim ourselves shall remain unaffected by this, but we undertake not to collect the claims, as long as the purchaser properly meets his payment obligations. The purchaser shall be obligated to notify us of the claims assigned and their debtors, to furnish all particulars required for collection, to hand over pertinent records and to advice third parties of the assignment.
  6. If the purchaser sells the supplied goods to a third party and pays by check, the title to the check shall pass to us, as soon as the customer purchases the goods. If payment is effected by check or bill of exchange, the purchaser hereby assigns his resulting claims on account of performance to us. The transfer of these documents is substituted by the fact that the purchaser preserves them for us or, if he does not receive the actual possession, that he assigns hereby his claim for return of property against third parties to us. He will sign these documents with his endorsement and pass them immediately to us.
  7. By accepting a check payment of the purchase price by check/bill of exchange procedure, there will be no final fulfilment by the purchaser. All our rights to the reservation of title described herein shall remain valid until the payment and the credit entry.
  8. The processing or alteration of the goods subject to reservation of title or the incorporation of which will always be performed by the purchaser for tmb, without any obligations arising for us.
    In the event that these goods are processed, inseparably mixed with or incorporated into other goods not belonging to us, we shall acquire co-ownership to the new goods, in the proportion of our goods to the others. If our goods are combined to a single object or inseparably mixed with other objects and if the other object shall be regarded as the main object, tmb and the purchaser agree, that the joint property, resulting for the purchaser from the blending, processing or mixing, will pass to tmb in the moment when it incurs to the purchaser.
    The transfer of these goods is substituted by the fact that the purchaser preserves the ownership or co ownership good free of charge on behalf of us. For the goods resulting from the blending, processing or mixing applies the same as for the retention of title goods.
  9. Insofar as the value of the goods subject to reservation of title is referred to, it results out of our invoice amount, net (invoice value). We undertake to release securities of our choice due to tmb as long as the value of the claims to be secured does exceed 30 %.
  10. The purchaser does not have the right to assign the claims, which he purchases due to the resale as long as our claims against him are outstanding, unless we have given our written consent. This applies also for such agreements which negate or affect the prior assignment. In the event of an attachment or other intervention by a third party, the purchaser shall inform us immediately in writing by passing us the necessary documents for an intervention.

§ 5 Warranty

  1. Material defects
    1. The supplier warrants the goods free from defects, among them the lack of expressively assured properties and the breach of warranty obligations, but excluding further claims as follows:
      • Liability is only assumed for products of tmb, any claims of tmb against its subcontractor for products from other manufacturers will be assigned to the purchaser.
      • Warranty shall not be given for the following instances in particular: Unsuitable or inappropriate use, incorrect fitting and/or commissioning on the part of the purchaser or a third party, normal wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating material, faulty construction work, an unsuitable base, chemical, electrochemical or electrical influences – if tmb is not responsible for them – productivity expectations or performance parameters of the delivery item and/or products, if they are not expressly agreed in the contract in writing.
      • Liability will only be assumed for damages directly arising on the delivery item, but not for damages that are caused for example by the delivery item itself and its defective design or execution, and in particular if they are caused by failures during operation. § 6 is also applicable.
      • Liability will be assumed to the first purchaser but not to third parties to whom the delivery item or the plant is sold.
      • The liability, irrespective of the delivery or performance obligation, is limited to the rectification or replacement of parts, which become verifiably unusable or their usefulness is seriously impaired as a result of circumstances prior to the transfer of risk, especially as a result of a faulty design, poor materials or improper workmanship, within 12 months from the day of reception and/or proper commissioning.
        Such damages must be notified immediately in writing to tmb. The purchaser shall give tmb the time and the opportunity which may be needed to repair any defect.
      • No liability is assumed for delivery items which are second-hand items or where bought with a considerable discount.
      • Warranty and guarantee claims are excluded, if the purchaser has performed repairs or modifications of any kind on the delivery, assembly or repaired item himself or instructed third parties with the performance of such work, without previously giving tmb the possibility to do it. This does not apply only in urgent cases where work safety is at risk and to prevent disproportionately greater damages. This must be proven by the purchaser.
      • Defects on the delivery item or the goods shall be communicated to tmb Company in writing immediately after receipt.
      • Returns on the part of the purchaser to tmb will be only accepted, if a prior written agreement is made.
    2. When rework or the replacement delivery have finally failed the purchaser has the right – at its option – to demand a reduction of payment (decrease) or the rescission of contract or compensation with the restrictions and limitations in accordance with § 6 (liability).
  2. Defects of title

§ 6 Liability

  1. A claim of the Customer for compensation based on the default, fail of the rework, delay of the delivery or performance, as well as for non-compliance with the guarantee terms of rework and additional delivery is excluded, unless gross negligence of tmb is proven.
  2. In the event of a delay of delivery, assembly or repair and a resulting damage for the purchaser, caused by tmb, the following applies:
    The purchaser is entitled to demand lump sum compensation for the delay, limited to 0,5 % in total for each full week of the default but in total not more than 5 % of the value corresponding to the part of the delivery which cannot be used in time or as stipulated in the contract due to the delay and/or 5 % of the assembly costs for that part of the plant assembled by tmb which cannot be used in time due to the delay.
  3. If the purchaser cannot use the delivery item in the way intended by the contract due to the fault of tmb and resulting from not or incorrectly carrying out suggestions and agreements made before or after the contract is signed, or from a breach of other secondary contractual duties especially instructions for operating and servicing the delivery item, the provisions according to § 5 and 6 clause 4 shall apply accordingly and to the exclusion of all and any other rights of the purchaser.
  4. tmb is only liable, for whatever legal reasons, for damages which have not arisen on the delivery, assembly and repair item itself
    1. in case of wilful intent,
    2. in case of gross negligence on the part of the proprietor / the organs or executive staff,
    3. in case of culpable injury to life, body and health,
    4. in case of defects that were fraudulently concealed or the absence of which was guaranteed,
    5. in case of delivery item defects to the extent as liability is provided under the product liability law for personal injury and property damage in relation to privately used items.
  5. in the event of slight negligence, liability shall be limited for tmb to the contractually relevant foreseeable damage. Further claims shall be excluded.
  6. Where tmb is liable for damages, the compensation claims of the purchaser shall be limited to the delivered product value and/or the simple contract value.
    In every event of damages of goods or physical injuries the liability of tmb is limited to a sum of 3.000.000 € and in every event of financial losses to 100.000 €.

§ 7 Limitation

The right of the purchaser to file claims as a result of defects, for whatever legal reasons, shall become statute barred after 12 months.
The statutory periods shall apply for claims of compensation for damages which have not arisen on the delivery item itself and for which tmb is liable according to § 6 clause 4a)-e). They shall also apply for defects on building structures or for delivery goods, which were properly employed in their intended use for building structures, and caused defects to such building structures.

§ 8 Contractual exclusion of assignment and set off

  1. Obligations and claims based on the contract are not assignable by the purchaser without our written consent.
  2. Offsetting against our claims is only permissible in the case of undisputed counterclaims or counterclaims which have been established as legally valid.
    A right of retention from earlier or other transactions of the ongoing business relationship cannot be claimed. For the exercise of the right of retention clause 1 shall apply.

§ 9 Place of performance and jurisdiction

The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship, including bill change, check and document proceedings, shall be our place of business.
This also applies for a contractual party without a general place of jurisdiction in the Federal Republic of Germany, when a contractual party relocates its residence or usual residence outside the territory of the Federal Republic of Germany or when its usual residence is not known at the time of pursuing the avoidance claim, as well as for contracts with non-merchants, in the event that claims are asserted in the course of a legal default action.
tmb is, however, entitled to take legal action at the principal place of business of the purchaser. All legal relationships between tmb and the purchaser shall be exclusively governed by the law of the Federal Republic of Germany which is decisive for the legal relationships between domestic parties.

Status: September 2002

Torgauer Maschinenbau GmbH
Managing Director: Eckhard Knöchelmann
Office: Solarstraße 29, 04860 Torgau
Regional Court: Leipzig Stadt HRB 3887